In Robinson v. Nabisco, Inc., 331 Or 178, 189-90, 11 P3d 1286 (2000), the
Supreme Court held that when a claimant who sustained a work-related injury and
subsequently, during an "insurer medical exam" (IME) conducted to evaluate that injury,
suffered a second injury, that second injury arose out of and in the course of employment
and therefore entitled the claimant to workers' compensation benefits. (1) In Getz v. Wonder
Bur, 183 Or App 494, 502, 52 P3d 1097, rev den, 335 Or 104 (2002), this court reached
the same conclusion regarding a "physical capacity evaluation" (PCE). The present case
is another variation on the same theme: Does an injury occurring during a "medical
arbiter exam" (MAE) arise out of and in the course of employment? The Workers'
Compensation Board (board) concluded that it did not. We reverse.

Claimant appealed, seeking reinstatement of the original level of scheduled
permanent disability (18 percent) and also compensation for the MAE-inflicted injury.
The board reinstated the original 18 percent but concluded that the injury suffered at the
MAE was not compensable. Employer apparently accepted the reinstatement to 18
percent, but claimant sought judicial review of the noncompensability conclusion. We
affirmed without an opinion. McAleny v. Max J. Kuney Co., 149 Or App 212, 942 P2d
302 (1997). Claimant sought Supreme Court review and, while the review was pending,
the court decided in Robinson that an injury suffered during an IME arose out of and in
the course of employment. The court remanded this case to the board for further
proceedings in light of Robinson. McAleny v. Max J. Kuney Co., 331 Or 596, 16 P3d
1154 (2001). On remand, the board reaffirmed its original denial, relying on its own
decision in Dennis M. Getz, 53 Van Natta 375 (2001), and distinguishing that decision
from Robinson on the ground that Robinson dealt with an IME while Getz dealt with a
PCE. An MAE, the board held, was more like a PCE than an IME. Shortly thereafter,
however, we reversed Getz, 183 Or App 494, thereby undercutting the board's decision in
this case. The question now on judicial review, therefore, is whether, in light of Robinson
and Getz, an injury that occurs during a MAE, like one occurring during an IME and a
PCE, arises out of and in the course of employment and is, therefore, compensable.

Like the facts, the legal principles governing this case are not in dispute.
ORS 656.005(7)(a)(A) and (B) provide that "an accidental injury * * * arising out of and
in the course of employment" is "compensable," subject to "limitations" for so-called
"consequential" injuries and "combined conditions." Robinson, 331 Or at 184-85, holds
that if the injury does, in fact, arise out of and in the course of employment, the injury is
per se compensable notwithstanding the limitations. AccordGetz, 183 Or App at 497.

In determining whether an injury arises out of and in the course of
employment, the court takes guidance from the overarching principle expressed as the
following inquiry:

"Considering all the pertinent circumstances, are the temporal, spatial,
circumstantial, and causal connections between the claimant's injury and
employment sufficient to justify compensation, when sufficiency is
evaluated in light of the [Workers' Compensation] Act's policy of providing
financial protection to workers who are injured in the course of
employment, regardless of fault?"

Andrews v. Tektronix, Inc., 323 Or 154, 162, 915 P2d 972 (1996). More concretely
stated, this so-called "work-connection test" has two parts: first, the injury must "arise
out of" the employment, which means that there must be some causal link "between the
worker's injury and his or her employment," Robinson, 331 Orat 186; and second, the
injury must occur "in the course of the employment," which means "that the time, place,
and circumstances of the injury justify connecting the injury to the employment," id.
(citing Krushwitz v. McDonald's Restaurants, 323 Or 520, 526, 919 P2d 465 (1996)).
"The proper focus [of the second part] is whether the activity promotes some interest of
the employer." Robinson, 331 Or at 189. To qualify as compensable, the injury must
meet both parts, but "if many facts support one element * * *, fewer facts may support the
other." Id. at 186.

To apply the legal principles to the facts of this case, we must begin with a
description of the MAE and its function. In essence, the MAE is a mechanism by which a
claimant may object to the conditions and conclusions contained in the notice of claim
closure, usually the last routine step in the sequence of claim processing events. At the
time of claimant's injury and the closure of his claim, the MAE was authorized and
described by ORS 656.286(7) (1993):

"If the basis for objection to a notice of closure * * * is disagreement
with the impairment used in rating of the worker's disability, the director
shall refer the claims to a medical arbiter appointed by the director. * * *
The arbiter * * * shall be chosen from among a list of physicians qualified
to be attending physicians * * * who were selected by the director in
consultation with the Board of Medical Examiners and [the Workers'
Compensation Management-Labor Advisory Committee]. The medical
arbiter * * * may examine the worker and perform such tests as may be
reasonable and necessary to establish the worker's impairment. The costs of
examination and review by the medical arbiter * * * shall be paid by the
insurer or self-insured employer."

After an MAE, the director may issue an order on reconsideration, which, in turn, may be
appealed to the board. On judicial review of the board's decision, we review factual
determinations for substantial evidence and legal issues for errors of law. ORS
656.298(7).

In light of the foregoing principles, we conclude that the injury sustained by
claimant in the MAE arose out of and in the course of his employment. The similarities
between this MAE, the IME in Robinson, and the PCE in Getz far outweigh any
differences. Regarding the "arising out of" aspect of the work-connection test, we readily
conclude that, like the injuries in those cases, this injury derived directly and obviously
from claimant's employment. As the Supreme Court described the connection in
Robinson:

"The predicate for [the medical exam where the injury occurred] is a
work-related injury * * * that entitles the worker to receive compensation.
Thus, it is a condition of the employment relationship--specifically, an
injury * * * that occurs on the job--that gives rise to the respective rights
and duties of the parties * * *."

331 Or at 186-87. Further, had claimant not complied with the request for the MAE, his
benefits would have been suspended. Cf. id. at 187.

The second inquiry of the work-connection test--whether the injury arose
"in the course of" employment--also yields an affirmative answer, albeit not as obviously
as the first inquiry. Although the injury did not take place at claimant's primary
workplace while he was "on the clock" and under the direct control of the employer, those
facts do not necessarily mean that the injury did not arise in the course of employment.
Getz, 183 Or App at 501. As noted above, the test requires that the time, place, and
circumstances of the injury justify connecting the injury to the employment,with a
primary focus on whether the claimant's activity at the time of injury promotes some
interest of the employer or reasonably relates to it. Robinson, 331 Or at 186, 189; Fred
Meyer, Inc. v. Hayes, 325 Or 592, 598, 943 P2d 197 (1997). Like the PCE in Getz, the
MAE here occurred while claimant was on employer's payroll, at a location where the
worker could reasonably be expected to be (the facility to which he had been sent by the
director), while doing something incidental to the duties of his employment.

Further, as we indicated in discussing the first part of the work-connection
test, participating in the MAE was not an act performed by claimant for personal reasons
unconnected to his employment. Robinson, 331 Or at 188; Getz, 183 Or App at 500. The
purpose of the MAE, like the IME in Robinson, is

"to provide the director, the self-insured employer, or the employer's insurer
with information about claimant's condition from a doctor who has no
fiduciary relationship with claimant, such as that of an attending physician.
* * * An employer or insurer that requests a [IME] * * * might use the
examining doctor's information to protect the employer's legal position on
the claim vis-à-vis the claimant, for example, by challenging * * * the
extent of any resulting disability, or the nature of medical or psychological
treatment that the claimant may require."

Robinson, 331 Or at 187. Indeed, in the present case, the medical arbiter did revise
claimant's disability award in employer's favor, although that revision did not survive on
appeal.

Finally, claimant's MAE, like an IME or a PCE, must be paid for by an
employer's insurer or the employer itself if it is self-insured. ORS 656.268(7). We find it
significant that the legislature, in creating the workers' compensation system, decided to
assign the cost of the MAE to the employer's insurer or the self-insured employer and not
to the claimant. That decision indicates a recognition that an MAE, like an IME or a
PCE, does not serve a claimant's personal interest unconnected to work but is instead "an
integral part of the claim verification process." Getz, 183 Or at 501.

1. In Getz v. Wonder Bur, 183 Or App 494, 497 n 1, 52 P3d 1097, rev den,
335 Or 104 (2002), we noted the divergent names and acronyms given to the exam
referred to in ORS 656.325 and OAR 436-010-0265; we decided in that case to call the
exam a CME, or "compelled medical exam," because that was the term the Supreme
Court used in Robinson, 331 Or at 181. Thereafter, we decided to use the more neutral
term "Insurer Medical Examinations" (IMEs) "because that is the designation given to
them by the director of the Department of Consumer and Business Services (DCBS), who
has the statutory responsibility to promulgate rules implementing procedures for the
exams." Darling v. Johnson Controls Battery Group, 188 Or App 190, 192 n 1, 70 P3d
894 (2003).

3. Claimant also argues that the board's order denying him compensation, in
combination with ORS 656.018 (workers' compensation is exclusive remedy for
workplace injuries), deprives him of a remedy for injury, thereby violating Article I,
section 10, of the Oregon Constitution. Our reversal of the board's denial obviates the
need for us to decide whether claimant adequately raised that issue below and, if so,
whether it has merit.